# C_2020161EN.01001801.xml

| 11.5.2020 | EN | Official Journal of the European Union | C 161/18 |
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11.5.2020

EN

Official Journal of the European Union

C 161/18

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Request for a preliminary ruling from the Szegedi Közigazgatási és Munkaügyi Bíróság (Hungary) lodged on 18 December 2019 — FMS and FNZ v Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság and Országos Idegenrendészeti Főigazgatóság

(Case C-924/19 PPU)

(2020/C 161/27)

Language of the case: Hungarian

Referring court

Szegedi Közigazgatási és Munkaügyi Bíróság

Parties to the main proceedings

Applicants: FMS and FNZ

Defendants: Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság and Országos Idegenrendészeti Főigazgatóság

Questions referred

1.   [New ground of inadmissibility]

Must the provisions on inadmissible applications in Article 33 of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (recast) (‘the Procedures Directive’) (1) be interpreted as precluding a Member State’s legislation under which an application made in the context of the asylum procedure is inadmissible when the applicant reached Hungary via a country where he was not exposed to persecution or a risk of serious harm, or in which a sufficient degree of protection is guaranteed?

2.   [Conduct
  of an asylum procedure]

| (a) | Must Article 6 and Article 38(4) of the Procedures Directive, and recital 34 thereto, which imposes an obligation to examine applications for international protection, read in the light of Article 18 of the Charter of Fundamental Rights (‘the Charter’), be interpreted as meaning that the competent asylum authority of a Member State must ensure that the applicant has the opportunity to initiate the asylum procedure if it has not examined the substance of the application for asylum by relying on the ground of inadmissibility mentioned in Question 1 above and has subsequently ordered the return of the applicant to a third country which has however refused to readmit him? |
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(a)

Must Article 6 and Article 38(4) of the Procedures Directive, and recital 34 thereto, which imposes an obligation to examine applications for international protection, read in the light of Article 18 of the Charter of Fundamental Rights (‘the Charter’), be interpreted as meaning that the competent asylum authority of a Member State must ensure that the applicant has the opportunity to initiate the asylum procedure if it has not examined the substance of the application for asylum by relying on the ground of inadmissibility mentioned in Question 1 above and has subsequently ordered the return of the applicant to a third country which has however refused to readmit him?

| (b) | If the answer to question 2(a) is in the affirmative, what is the exact extent of that obligation? Does it imply an obligation guaranteeing the possibility to submit a new application for asylum, thereby excluding the negative consequences of subsequent applications referred to in Articles 33(2)(d) and 40 of the Procedures Directive, or does it imply the automatic start or conduct of the asylum procedure? |
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(b)

If the answer to question 2(a) is in the affirmative, what is the exact extent of that obligation? Does it imply an obligation guaranteeing the possibility to submit a new application for asylum, thereby excluding the negative consequences of subsequent applications referred to in Articles 33(2)(d) and 40 of the Procedures Directive, or does it imply the automatic start or conduct of the asylum procedure?

| (c) | If the answer to Question 2(a) is in the affirmative, taking account also of Article 38(4) of the Procedures Directive, can the Member State — the factual situation remaining unchanged — re-examine the inadmissibility of the application in the context of that new procedure (thereby giving it the possibility of applying any type of procedure provided for in Chapter III, for example reliance once again on a ground of inadmissibility) or must it examine the substance of the application for asylum in the light of the country of origin? |
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(c)

If the answer to Question 2(a) is in the affirmative, taking account also of Article 38(4) of the Procedures Directive, can the Member State — the factual situation remaining unchanged — re-examine the inadmissibility of the application in the context of that new procedure (thereby giving it the possibility of applying any type of procedure provided for in Chapter III, for example reliance once again on a ground of inadmissibility) or must it examine the substance of the application for asylum in the light of the country of origin?

| (d) | Does it follow from Article 33(1) and (2)(b) and (c) and Articles 35 and 38 of the Procedures Directive, read in the light of Article 18 of the Charter, that readmission by a third country is one of the cumulative conditions for the application of a ground of inadmissibility, that is to say, for the adoption of a decision based on such a ground, or is it sufficient to verify that that condition is satisfied at the time of the enforcement of such a decision? |
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(d)

Does it follow from Article 33(1) and (2)(b) and (c) and Articles 35 and 38 of the Procedures Directive, read in the light of Article 18 of the Charter, that readmission by a third country is one of the cumulative conditions for the application of a ground of inadmissibility, that is to say, for the adoption of a decision based on such a ground, or is it sufficient to verify that that condition is satisfied at the time of the enforcement of such a decision?

3.   [Transit zone as a place of detention in the context of an asylum procedure]

The following questions are relevant if, in accordance with the answer to Question 2, an asylum procedure must be conducted.

| (a) | Must Article 43 of the Procedures Directive be interpreted as precluding legislation of a Member State under which the applicant may be detained in a transit zone for more than four weeks? |
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(a)

Must Article 43 of the Procedures Directive be interpreted as precluding legislation of a Member State under which the applicant may be detained in a transit zone for more than four weeks?

| (b) | Must Article 2(h) of Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (recast) (‘the Reception Directive’), (2) applicable pursuant to Article 26 of the Procedures Directive, read in the light of Article 6 and Article 52(3) of the Charter, be interpreted as meaning that accommodation in a transit zone in circumstances such as those in the main proceedings (a zone which an applicant cannot lawfully leave on a voluntary basis regardless of his destination) for a period exceeding the four-week period referred to in Article 43 of the Procedures Directive constitutes detention? |
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(b)

Must Article 2(h) of Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (recast) (‘the Reception Directive’), (2) applicable pursuant to Article 26 of the Procedures Directive, read in the light of Article 6 and Article 52(3) of the Charter, be interpreted as meaning that accommodation in a transit zone in circumstances such as those in the main proceedings (a zone which an applicant cannot lawfully leave on a voluntary basis regardless of his destination) for a period exceeding the four-week period referred to in Article 43 of the Procedures Directive constitutes detention?

| (c) | Is the fact that the detention of the applicant for a period exceeding the four-week period referred to in Article 43 of the Procedures Directive takes place only because he cannot meet his needs (accommodation and food) due to a lack of material resources to cover those needs compatible with Article 8 of the Reception Directive, applicable pursuant to Article 26 of the Procedures Directive? |
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(c)

Is the fact that the detention of the applicant for a period exceeding the four-week period referred to in Article 43 of the Procedures Directive takes place only because he cannot meet his needs (accommodation and food) due to a lack of material resources to cover those needs compatible with Article 8 of the Reception Directive, applicable pursuant to Article 26 of the Procedures Directive?

| (d) | Is the fact that (i) accommodation which constitutes de facto detention for a period exceeding the four-week period referred to in Article 43 of the Procedures Directive has not been ordered by a detention order, (ii) no guarantee that the lawfulness of the detention and its continuation may be challenged before the courts has been provided, (iii) the de facto detention takes place without any examination of the necessity or proportionality of that measure, or whether there are any alternatives measures and (iv) the exact duration of the de facto detention is not fixed, including the date on which it ends, compatible with Articles 8 and 9 of the Reception Directive, applicable pursuant to Article 26 of the Procedures Directive? |
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(d)

Is the fact that (i) accommodation which constitutes de facto detention for a period exceeding the four-week period referred to in Article 43 of the Procedures Directive has not been ordered by a detention order, (ii) no guarantee that the lawfulness of the detention and its continuation may be challenged before the courts has been provided, (iii) the de facto detention takes place without any examination of the necessity or proportionality of that measure, or whether there are any alternatives measures and (iv) the exact duration of the de facto detention is not fixed, including the date on which it ends, compatible with Articles 8 and 9 of the Reception Directive, applicable pursuant to Article 26 of the Procedures Directive?

| (e) | Can Article 47 of the Charter be interpreted as meaning that, when a manifestly unlawful detention is brought for consideration before a court of a Member State, that court may, as an interim measure, until the administrative proceedings come to an end, require the authority to designate for the benefit of the third-country national a place of stay outside the transit zone which is not a place of detention? |
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(e)

Can Article 47 of the Charter be interpreted as meaning that, when a manifestly unlawful detention is brought for consideration before a court of a Member State, that court may, as an interim measure, until the administrative proceedings come to an end, require the authority to designate for the benefit of the third-country national a place of stay outside the transit zone which is not a place of detention?

4.   [Transit zone as a place of detention in the context of an asylum procedure]

The following questions are relevant if, in accordance with the answer to Question 2, there is a need to conduct not an asylum procedure but a procedure within the field of competence of the Aliens Police:

| (a) | Must recitals 17 and 24 and Article 16 of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (‘the Return Directive’), (3) read in the light of Article 6 and Article 52(3) of the Charter, be interpreted as meaning that accommodation in a transit zone in circumstances such as those in the main proceedings (a zone which an applicant cannot lawfully leave on a voluntary basis regardless of his destination) constitutes deprivation of liberty for the purposes of those provisions? |
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(a)

Must recitals 17 and 24 and Article 16 of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (‘the Return Directive’), (3) read in the light of Article 6 and Article 52(3) of the Charter, be interpreted as meaning that accommodation in a transit zone in circumstances such as those in the main proceedings (a zone which an applicant cannot lawfully leave on a voluntary basis regardless of his destination) constitutes deprivation of liberty for the purposes of those provisions?

| (b) | Is the fact that the detention of an applicant, national of a third country, takes place solely because he is subject to a return order and cannot meet his needs (accommodation and food) due to a lack of material resources to cover those needs compatible with Recital 16 and Article 15(1) of the Return Directive, read in the light of Articles 6 and 52(3) of the Charter? |
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(b)

Is the fact that the detention of an applicant, national of a third country, takes place solely because he is subject to a return order and cannot meet his needs (accommodation and food) due to a lack of material resources to cover those needs compatible with Recital 16 and Article 15(1) of the Return Directive, read in the light of Articles 6 and 52(3) of the Charter?

| (c) | Is the fact that (i) accommodation which constitutes de facto detention has not been ordered by a detention order, (ii) no guarantee that the lawfulness of the detention and its continuation may be challenged before the courts has been provided and (iii) the de facto detention takes place without any examination of the necessity or proportionality of that measure, or whether there are any alternatives measures, compatible with Recital 16 and Article 15(2) of the Return Directive, read in the light of Articles 6, 47 and 52(3) of the Charter? |
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(c)

Is the fact that (i) accommodation which constitutes de facto detention has not been ordered by a detention order, (ii) no guarantee that the lawfulness of the detention and its continuation may be challenged before the courts has been provided and (iii) the de facto detention takes place without any examination of the necessity or proportionality of that measure, or whether there are any alternatives measures, compatible with Recital 16 and Article 15(2) of the Return Directive, read in the light of Articles 6, 47 and 52(3) of the Charter?

| (d) | Can Article 15(1) and (4) to (6) and recital 16 of the Return Directive, read in the light of Articles 1, 4, 6 and 47 of the Charter be interpreted as precluding detention from taking place without its exact duration being fixed, including the date on which it ends? |
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(d)

Can Article 15(1) and (4) to (6) and recital 16 of the Return Directive, read in the light of Articles 1, 4, 6 and 47 of the Charter be interpreted as precluding detention from taking place without its exact duration being fixed, including the date on which it ends?

| (e) | Can EU law be interpreted as meaning that, when a manifestly unlawful detention is brought for consideration before a court of a Member State, that court may, as an interim measure, until the administrative proceedings come to an end, require the authority to designate for the benefit of the third-country national a place of stay outside the transit zone which is not a place of detention? |
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(e)

Can EU law be interpreted as meaning that, when a manifestly unlawful detention is brought for consideration before a court of a Member State, that court may, as an interim measure, until the administrative proceedings come to an end, require the authority to designate for the benefit of the third-country national a place of stay outside the transit zone which is not a place of detention?

5.   [effective judicial protection with regard to the decision amending the country of return]

Must Article 13 of the Return Directive, under which a third-country national is to be afforded an effective remedy to appeal against or seek review of ‘decisions related to return’, read in the light of Article 47 of the Charter, be interpreted as meaning that, where the remedy provided for under domestic law is not effective, a court must review the application lodged against the decision amending the country of return at least once?

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(1)  OJ 2013 L 180, p. 60.

(2)  OJ 2013 L 180, p. 96.

(3)  OJ 2008 L 348, p. 98.

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